PSH-18-0026

*The original of this document contains information which is subject to withholding from
disclosure under 5 U.S. C. § 552. Such material has been deleted from this copy and replaced
with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: March 15, 2018 ) Case No.: PSH-18-0026
)
_________________________________________ )
Issued: June 28, 2018
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Administrative Judge Decision
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Gregory S. Krauss, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (hereinafter referred to as “the individual”)
for access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, entitled, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.”1 For the reasons set forth below, I conclude that the
individual’s security clearance should be restored.
I. Background
The individual is an employee of a DOE contractor in a position that requires him to hold a security
clearance. He first obtained a DOE Q clearance over 20 years ago. Transcript (“Tr.”) at 74; Exhibit
(“Ex.”) 9 at 30. On May 1, 2017, he reported to the DOE that he had been charged with Driving
Under the Influence (DUI). Ex. 8 at 1. On July 27, 2017, the Local Security Office (LSO) conducted
a personnel security interview (PSI) with the individual. Because the individual’s conduct raised
security concerns that the PSI did not resolve, the LSO referred the individual for an evaluation by
a DOE-consultant psychologist (“DOE psychologist”). After an evaluation, the DOE psychologist
issued a report in which she determined that the individual met the criteria in the Diagnostic and
Statistical Manual of Mental Disorders, 5th Edition (“DSM-5”) for Alcohol-Related Disorder,
Mild.2 Ex. 6 at 8. In her report, she further determined that the individual was in early remission
and had not demonstrated adequate evidence of rehabilitation or reformation. Id. Accordingly, the
LSO began the present administrative review proceeding by issuing a Notification Letter to the
individual informing him that information in the DOE’s possession had created a substantial doubt
concerning his eligibility for a security clearance. The Notification Letter also informed him that
1 “Access authorization” is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will also be referred to in this Decision as a security clearance.
2 In her report, the DOE psychologist used the code “DSM-5 305.00.” Ex. 6 at 8. In the DSM-5, 305.00 is the code for
a mild “Alcohol Use Disorder.” DSM-5 (2013) at 491.
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his security clearance had been suspended and that, pursuant to 10 C.F.R. § 710.21, he was entitled
to a hearing before an Administrative Judge.
The individual requested a hearing and the LSO forwarded the individual’s request to the Office of
Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge in
this matter on March 15, 2018. On May 18, 2018, I convened a hearing pursuant to 10 C.F.R.
§§ 710.25(d), (e) and (g). At the hearing, I took testimony from the individual, his sponsor in
Alcoholics Anonymous (AA), a leader from his church, and the DOE psychologist. The LSO
submitted 11 exhibits, marked as DOE Exhibits 1 through 11. The individual submitted seven
Exhibits, marked as Exhibits A through G.
II. Regulatory Standard
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance.
See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national
interest” standard for granting security clearances indicates “that security determinations should
err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),
cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The
Part 710 regulations are drafted so as to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
III. The Notification Letter and the Associated Security Concerns
As indicated above, the Notification Letter informed the individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security clearance.
The LSO described its security concerns in a “Summary of Security Concerns” attached to the
Notification Letter. In that document, the LSO indicated that its concerns pertained to Guideline G
of the National Security Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information or Eligibility to Hold a Sensitive Position (June 8, 2017) (“Adjudicative
Guidelines”).
Guideline G of the Adjudicative Guidelines is titled “Alcohol Consumption.” This Guideline
provides that “[e]xcessive alcohol consumption often leads to the exercise of questionable
judgment or the failure to control impulses, and can raise questions about an individual’s reliability
and trustworthiness.” Guideline G at ¶ 21. As support for its invocation of Guideline G, the LSO
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relied upon the DOE psychologist’s diagnosis of the individual with Alcohol-Related Disorder,
Mild, under the DSM-5. Ex. 1 at 1. The LSO also alleged, citing evidence from the individual’s
PSI and from other records, that the individual had been involved in three alcohol-related incidents.
First, the LSO stated that on April 28, 2017, the individual was arrested and charged with
aggravated DUI. Id. According to the LSO, the individual registered a blood alcohol concentration
of 0.22 and 0.20 and admitted to drinking up to half of a 750 ml bottle of whiskey. Id. Second, the
LSO alleged that, on July 12, 1990, the individual was arrested in Colorado and charged with DUI.
Id. Third, the LSO alleged that on October 28, 1989, the individual was arrested in Wyoming for
disorderly conduct and that the individual consumed alcohol prior to the arrest. Id. Finally, the LSO
stated that the individual had admitted, in his PSI on July 27, 2017, to having developed a problem
with alcohol and to being an alcoholic. Id.
Under Guideline G, diagnosis of an alcohol use disorder by a duly qualified mental health
professional can raise a security concern and may disqualify an individual from continuing to hold
a security clearance. Guideline G at ¶ 22(d). Alcohol-related incidents away from work, such as
driving under the influence or disturbing the peace, can also raise a security concern. Guideline G
at ¶ 22(a). In light of the information available to the LSO, it was proper for the LSO to invoke
Guideline G.
IV. Findings of Fact
A. History of Alcohol Use
Earlier in his life, the individual was arrested on two separate occasions for conduct related to
alcohol consumption. In October 1989, on the night before his twenty-first birthday, he was
drinking with friends in a college dorm in Wyoming. Ex. 10 at 43. The police were called and he
was arrested for disorderly conduct. Id. In July 1990, the individual attended a barbeque picnic and
had two beers in quick succession before departing in his vehicle. Id. at 40. He was subsequently
arrested for driving under the influence of alcohol.3 Id. at 40-41.
The individual drank infrequently and usually in moderate quantities between 1994 and 2012. See
Ex. 10 at 53-54; Ex. 6 at 3. Starting in 2012, the individual began drinking more often and in greater
amounts. Ex. 10 at 54. He was experiencing a number of stresses at home and at work. Tr. at 101.
By 2015, he was consuming up to three or four beers about four times a week. Ex. 10 at 54-55.
That same year, he was having difficulty sleeping. Id. at 56. He stopped drinking beer and began
consuming about two drinks of rum or whiskey about four times a week after work. Id. at 57. He
stated in his PSI that he would use alcohol “to make my brain get quiet.” Id. at 58. The individual
drank to intoxication about three times a month. Id. at 59.
Around March 2016, the individual went to his employer’s Employee Assistance Program (EAP).
Ex. 6 at 4; Tr. at 89. An EAP counselor suggested that he attend AA meetings. Tr. at 89. The
individual attended his first AA meeting in April 2016. Ex. 10 at 62. In early May 2016, an AA
participant agreed to be the individual’s sponsor and assist him in his recovery. Tr. at 17. Around
this time, on May 13, 2016, the individual began an extended period of sobriety, coupled with a
3 In his PSI, the individual referred to the charge as “Driving While Ability is Impaired.” Ex. 10 at 40.
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high level of attendance at AA meetings. Tr. at 92. He estimated in his PSI that he may have
attended over 100 AA meetings in 90 days. Ex. 10 at 63.
Between April 2016 and January 2017, the individual met eight times with an EAP counselor, who
taught him meditation techniques. Ex. 6 at 4. In 2016 and early 2017, he also attended religious
educational courses at a Catholic church, first alone and then with his wife joining him. Ex. 10 at
75; Ex. 6 at 4. His wife was Catholic but he was not a member of the faith himself. Tr. at 137. The
individual remained abstinent from May 2016 through March 2017. Ex. 10 at 35-36. As of April
2017, the individual was working on the fifth step of AA’s 12-step program. Tr. at 18.
In April 2017, the individual was dealing with some stresses related to his son’s health and his
daughter’s efforts to obtain a college education. Tr. at 125-126. Sometime during the week
beginning Sunday, April 24, 2018, he ended his abstinence and consumed whiskey.4 Tr. at 8; Ex.
10 at 72; Ex. 6 at 3. On Friday, April 28, 2017, his wife left on a trip to pick up his daughter and
help her move back home. Ex. 10 at 37; Tr. at 8. He went to a river to fly fish and drank whiskey
while he fished. Tr. at 8. He believes he may have had about six shots of whiskey. Tr. at 78. He
then departed the river in his vehicle and was pulled over and arrested by police shortly after exiting
a gas station. Ex. 10 at 14-17. Breath tests registered a BAC of 0.22 and 0.20, over twice the legal
limit. Ex. 8 at 3, 5; Ex. 10 at 17. He was cited for aggravated DUI.5 Ex. 8 at 1, 6. After being bailed
out that evening, the individual continued to drink through Sunday of that weekend. Tr. at 8-9.
B. Initial Recovery Period
On Sunday, April 30, 2017, the individual contacted his wife and his AA sponsor to inform them
about his DUI. Tr. at 8-9. The next day, he reported his DUI to his LSO. Ex. 8 at 1. His employer
began to require him to take random alcohol tests, as often as twice a week.6 Ex. A at 1. The
individual returned to abstaining from alcohol, with a sobriety date of May 1, 2017. Tr. at 98.
A medical evaluation conducted at the request of the LSO recommended that he participate in an
intensive outpatient program (IOP). Ex. 6 at 20. The individual began an IOP on May 25, 2017.
Ex. D at 1. The treatment consisted of group therapy sessions and individual counseling. Ex. 10 at
80-82. The individual had never stopped attending AA meetings, but he now began attending on a
more frequent basis. Ex. 10 at 72-73. His records indicate that he attended a total of 33 AA meetings
in May 2017 and 24 meetings in June 2017. Ex. B at 1.
In July 2017, he reduced his AA attendance to about three or four meetings per week and began a
new evening program at church. See id. On July 27, 2017, he was interviewed for his PSI. In his
4 The individual testified at the hearing that he bought and consumed whiskey on the Thursday evening before his
DUI, which was April 27, 2017. Tr. at 8, 77. In his PSI, he stated that he started drinking “earlier in the week.” Ex.
10 at 72. The DOE psychologist’s report states that the individual’s relapse occurred on Wednesday, April 26, 2017.
Ex. 6 at 3.
5
At the hearing, the individual indicated that the DUI charges against him were dismissed when, for procedural
reasons, the testimony of the responding police officers was not admitted into evidence. Tr. at 95-96.
6 The individual took Breath Alcohol Content (BrAC) tests and urine tests for ethylglucuronide (EtG) and
ethylsulfate (EtS), two metabolites of alcohol. See Ex. A
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PSI, he acknowledged that he had developed a problem with alcohol, and he referred to himself as
“an alcoholic.” Ex. 10 at 125. He stated an intention to never drink alcohol again. Id. at 45. The
individual completed his IOP on August 17, 2017. Ex. D at 1. The counselor who treated him in
that program did not recommend that he participate in an aftercare program. See id.; Tr. at 153.
The DOE psychologist evaluated the individual on September 25, 2017. Ex. 10 at 79. As observed,
the DOE psychologist diagnosed the individual with Alcohol-Related Disorder, Mild. Ex. 6 at 8.
She further found that the individual was in early remission and that he had not demonstrated
adequate evidence of rehabilitation or reformation because his relapse was too recent.7 Id.
However, the DOE psychologist found that the individual could demonstrate adequate evidence of
rehabilitation by remaining abstinent for 12 months while attending AA meetings at least twice
weekly, proceeding with the 12-step method, and maintaining a relationship with a sponsor. Id.
C. Additional Recovery and Rehabilitation
The evidence indicates that as of the date of the hearing, May 18, 2018, the individual had abstained
from alcohol for over a year. At the hearing, the individual testified that he had remained sober
since May 1, 2017. Tr. at 98. His testimony is supported by results from alcohol testing. See Ex. A.
Between May 2017 and March 1, 2018, he took alcohol tests on at least 40 occasions, often taking
more than one type of test at a time.8 Id. All the results were negative. Id. To demonstrate his
sobriety between March 2017 and the date of the hearing, the individual arranged for additional
alcohol testing on May 11, 2018.9 Ex. G. The tests showed no evidence of alcohol use. Id.
Between September 2017 and May 2018, the individual continued to attend AA meetings, usually
four or more per week. Ex. B. He leads AA meetings himself and has begun to assist other AA
participants. Tr. at 10, 103. He has completed all 12 steps in the 12-step program. Tr. at 24. He has
maintained his relationship with his sponsor, whom he sees at meetings at least two or three times
a week. Tr. at 31. Additionally, the individual has increased his involvement in the Catholic Church.
Beginning in September 2017, the individual attended a course and took the necessary steps to
prepare himself to become a church member. Tr. at 9, 45. On March 31, 2018, the individual
completed the process of joining the church. Ex. C; Tr. at 49. The individual views his participation
in the church as an integral part of his recovery from his alcohol problems. At the hearing, he
characterized his journey after his DUI as “a program of recovery and faith formation.” Tr. at 9.
The individual’s witnesses described positive changes in the individual. His AA sponsor testified
that the individual “is not the same man I met a little over two years ago.” Tr. at 19. His sponsor
stated that when the individual relapsed in April 2017, the individual was “still questioning with
himself whether or not he was truly an alcoholic.” Tr. at 20. After that event, the individual made
7 In her report, the DOE psychologist also observed that the individual, both in his PSI and in her interview with him,
initially presented his relapse as occurring on the date of his DUI when in fact it had been on a day before the DUI.
Ex. 6 at 8; see also Ex. 10 at 35-36, 71. This difficulty accurately describing his relapse, she asserted, was evidence
that “he is still in some denial/minimization.” Ex. 6 at 8.
8 The individual testified that the last test conducted by his employer was on February 8, 2018. Tr. at 100. However,
the records indicate that his employer tested him as recently as March 1, 2018. Ex. A at 65.
9 The individual took a phosphatidylethanol (PEth) test and two EtOH tests that looked for the presence of ethanol. Ex.
G; Tr. at 115.
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a “shift,” his sponsor stated. Tr. at 32-33. The individual became more honest with himself and
with others about his alcohol problem and more willing to accept help. Tr. at 18-20, 32-33. His
sponsor believes that the individual has made enough progress in his recovery to be able to serve
as a sponsor to others. Tr. at 19. His sponsor called the individual’s commitment to abstinence
“wholehearted” and predicted that the individual will not drink again. Tr. at 27-28.
The church leader who testified at the hearing is a teacher in the adult conversion program that the
individual completed prior to joining the Catholic Church. Tr. at 42. The church leader stated that
he had observed a “personal transformation” in the individual starting in September 2017. Tr. at
46. The church leader believes that the stresses in the individual’s life have not changed since that
time but that the individual has learned to deal with those stresses in a more productive way. Tr. at
64-65. He indicated that the individual can now turn to prayer and personal study to assist him in
dealing with problems and to help him to “get centered.” Tr. at 66.
The individual does not intend to drink alcohol again. Tr. at 109. He plans to continue to maintain
his abstinence by attending AA meetings and remaining active in church. Tr. at 134. He testified
that he has had thoughts about drinking alcohol but that he has had no close calls since April 2017.
Tr. 102; see also Tr. at 36. He asserted that one reason he has been able to remain abstinent is that
he has developed a broader support network. Tr. at 103. The individual’s support network includes
his sponsor, friends he has met through AA and church, and his immediate and extended family.
Tr. at 65-66, 103, 124. The individual asserted that he has improved his relationships with his wife
and his children. Tr. at 103, 138-140. According to the church leader, the individual’s involvement
in church has been particularly helpful in strengthening the relationship between the individual and
his wife. See Tr. at 62.
At the hearing, the individual did not dispute the DOE psychologist’s diagnosis. Tr. at 82. He
acknowledged his alcohol problem and agreed that he is an alcoholic. Tr. at 10, 82. Further, he did
not dispute any of the material facts in the Summary of Security Concerns.10 Tr. at 76. However,
he contended that those security concerns have been mitigated. Tr. at 83; Ex. 2 at 2-3. He stated
that “my life and my basis of life and my priorities in my life are different today.” Tr. at 129.
The DOE psychologist attended the hearing and testified at its conclusion. In her testimony, she
stated that as of the date of the hearing she would revise her diagnosis to “alcohol use disorder in
sustained remission.” Tr. at 149. She found that the individual “probably has a very good to
excellent prognosis in sustaining his abstinence from alcohol.” Id. In reaching the new diagnosis,
she noted that he had complied with her treatment recommendations by maintaining abstinence for
12 months, participating in AA more than twice weekly, proceeding in the 12-step program, and
continuing his relationship with his sponsor. Tr. at 147. She emphasized that 12 months is “not an
arbitrary period of time” and that individuals who have maintained sobriety for that amount of time
are more likely to remain abstinent. Tr. at 150. She further found that in addition to meeting or
10 The individual did assert that the Summary of Security Concerns may have mischaracterized his statement in his
PSI regarding the amount of whiskey he consumed on the day of his arrest in 2017. Tr. at 76. The Summary of
Security Concerns stated that “he admitted [in his PSI] to drinking up to half of a 750 ml bottle of whiskey prior to
his arrest.” Ex. 1 at 1. The individual asserted that he did not admit to drinking up to half the bottle, but rather denied
consuming half the bottle. Tr. at 76-77. In his PSI, when asked if he drank half the bottle, he stated, “No, I don’t
think it was half.” Ex. 10 at 13. Regardless, the individual admits that he drove while intoxicated. Tr. at 96.
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exceeding her treatment recommendations, the individual had supported his recovery through a
change in perspective and by developing his spiritual life. Tr. at 149-50.
In response to a question about whether the individual’s relapse in April 2017 indicated an
increased risk of relapse in the future, the DOE psychologist stated that while “you have to take
that into consideration” it did not alter her prognosis. Tr. at 155. She stated again that based on the
individual’s progress in his recovery over the past 12 months, his overall his chances of remaining
sober are “very good to excellent.” Id.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the individual’s security clearance should be restored. I find that restoring the
individual’s DOE security clearance will not endanger the common defense and security, and is
clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I
make in support of this decision are discussed below.
As an initial matter, it is necessary to recall the specific security concerns at issue. Guideline G
provides that a diagnosis of an alcohol use disorder by a duly qualified mental health professional
can raise a security concern and may disqualify an individual from continuing to hold a security
clearance. Guideline G at ¶ 22(d). Here, the DOE psychologist diagnosed the individual with an
alcohol-related disorder, although a mild one. Under Guideline G, alcohol-related incidents away
from work, including driving under the influence and disturbing the peace, also can raise a security
concern. Guideline G at ¶ 22(a). In the instant matter, the individual was cited for DUI in 2017,
and, earlier in his life, was cited for intoxicated driving and for disorderly conduct. Consequently,
as noted above, legitimate security concerns exist as a result of the individual’s alcohol use.
Guideline G nevertheless describes conditions that can mitigate security concerns arising from
alcohol consumption. At least three of those conditions apply in the instant matter.
The first of these conditions arises when “the individual acknowledges his or her pattern of
maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has
demonstrated a clear and established pattern of modified consumption or abstinence in accordance
with treatment recommendations.” Guideline G at ¶ 23(b). The individual has satisfied all of the
components of this mitigating condition. The individual has acknowledged his problems with
alcohol to others and has become more honest with himself about his alcohol problem. The
individual also has provided evidence, through witness testimony and his exhibits, of significant
actions to overcome his alcohol problem. These include his frequent and sustained participation in
AA meetings, his completion of an IOP, and his commitment to finding a spiritual basis for his
recovery through involvement in his church. His abstinence for over a year, as established by
alcohol testing and his own testimony, demonstrates a clear and established pattern of alcohol
consumption in accordance with the DOE psychologist’s treatment recommendations.
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Another provision under Guideline G states that security concerns can be mitigated when “the
individual has successfully completed a treatment program along with any required aftercare, and
has demonstrated a clear and established pattern of modified consumption.” Guideline G at ¶ 23(d).
Given that the individual completed a treatment program and that he has maintained abstinence for
over a year, this mitigating condition applies as well. As observed, the individual’s counselor in his
IOP did not recommend that he participate in an aftercare program.11
Guideline G also provides that security concerns under Guideline G can be mitigated when “so
much time has passed, or the behavior was so infrequent, or it happened under such unusual
circumstances that it is unlikely to recur or does not cast doubt on the individual’s current
reliability, trustworthiness, or judgment.” Guideline G at ¶ 23(a). This condition applies in the
instant matter with respect to the concerns raised regarding the individual’s disorderly conduct and
drunk driving when he was 21 years old. Because these events occurred in 1989 and 1990, they
have limited relevance to the individual’s current reliability, trustworthiness, and judgment.
Moreover, even if it could be assumed that the individual’s DUI in 2017 represented the re-
emergence of an old pattern of alcohol-related conduct, the individual has demonstrated that he has
made changes in his life that establish a new pattern of abstinence.
If there is any reason to be cautious about the durability of the individual’s recovery, it is that the
individual remained abstinent for nearly a year while attending AA meetings and receiving EAP
counseling, only to relapse and be charged with DUI. Guideline G suggests that security concerns
could remain higher for individuals who have a history of treatment and relapse. Guideline G at
¶ 23(c). Nevertheless, this consideration should be accorded only so much weight. The DOE
psychologist’s testimony is persuasive that the individual’s relapse in April 2017 should be
considered in light of all the actions he has taken over the past year to recover from his alcohol use
disorder. Prior to his April 2017 relapse, the individual had participated in AA but he had not
completed an IOP, worked all 12 steps, maintained abstinence for a full year, or taken other actions
to support his recovery such as joining the church. Today, his recovery is sturdier and his dedication
to it is impressive. Importantly, in the expert opinion of the DOE psychologist, his prognosis for
continued abstinence is very good to excellent.
For the above reasons, I conclude that the security concerns under Guideline G have been
sufficiently resolved.
VI. Conclusion
In the above analysis, I have found that the LSO had sufficient derogatory information to invoke
Guideline G. However, after considering all of the evidence, both favorable and unfavorable, in a
common sense manner, I find that the individual has sufficiently mitigated the security concerns
that the LSO has raised. Accordingly, the individual has demonstrated that restoring his security
clearance would not endanger the common defense and would be clearly consistent with the
national interest. Therefore, the individual’s security clearance should be restored at this time. The
parties may seek review of this Decision by an Appeal Panel under the procedures set forth at
10 C.F.R. § 710.28.
11 As observed, the individual’s counselor in his IOP did not recommend that he participate in an aftercare program.
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Gregory S. Krauss
Administrative Judge
Office of Hearings and Appeals